Medical Malpractice/Full Right Knee Replacement Failure

QuestionI experienced severe drug interactions extending what I had been told would be a 2-3 day hospital stay for full knee replacement into a 16 day hospital stay, the first 10 of which I was having severe hallucinations, did not know where I was, and so forth . In fact, I don't even have memory of most of the first 10 days, having been told by my sisters, afterwards, what they had witnessed when they had come to visit.

Surgery was April 27, 2015 in New York State.

No medical service provider, but for the physical therapists, would listen to me when I began to report something was wrong; excessive, extended swelling and pain that I was having was not the norm. I was unable to sleep due to pain, and often could not get out of a chair or walk. It usually took two days just to recover from physical therapy.

The surgeon's office refused to do any follow-up tests e.g. an x-ray or knee aspiration, or even a bone scan to see what was up. I was told "I'm sorry you're experiencing discomfort." Another time, after having fallen, the surgeon's office was completely unavailable, even cancelling and rescheduling a pre-set appointment during this time.

When finally in appointment with the surgeon's medical assistant, regarding my having fallen, and the heightened inflammation and pain, I was told "Oh, that's too bad." I was refused renewal of the pain medication prescription, referring me to my Primary Care Physician. He in turn referr4ed me back to the surgeon's office, as they had provided the surgical treatment. The surgeon's Medical Assistant then, essentially, closed my treatment file, told to make a 2-month follow-up appointment, or just call to schedule to move ahead and have my second knee replaced (already having been diagnosed). I then learned the Medical Assistant had falsely charted that I had said I wanted to discontinue physical therapy!

I finally sought an independent, out-of-town second opinion at a facility affiliated with the Mayo Clinic. I had new x-rays taken and, then, based on those x-rays, had full nuclear knee scans. These showed that the prosthetic was separating from the tibia, both inside the post hole inside the bone, as well as up and along the top surface which was supposed to be growing together with the bone. It was assessed from these scans that the same was happening, with the prosthetic separating from the femur, on top.

Whereas I had been told the chart stated the posterior ligament had been (normally) removed, I was subsequently told that it had been severed, but still remained inside, behind my knee.

My knee joint is quite loose, destabilized, swollen and painful. I have had blood newly drawn, an appointment next week for a white blood cell scan, followed by an appointment to have my knee aspirated - all in the effort to determine whether there is any indication of a chronic infection having been a cause of the replacement failure, especially, as I have been advised that I require full revision surgery, and there are different ways to proceed if there is indication of infection or not.

I believe the knee prosthetic itself is what is called a “Zimmer.”

I've probably left some things out, but this defines the general scheme of what has happened and where I am in the process, now. Do I have a medical malpractise case due to negligence or failure to act in a professional manner (or something else) or cause for action against the prosthetic manufacturer itself (they apparently have been successfully sued hundreds of times for similar failures.

Thank you for your consideration of this matter.

I look forward to hearing from you soon.

AnswerSorry to hear you have had such a hard time. I'm a California lawyer and I can't do anything from out here other that to give you some information and advice. Firstly, in NY the Statute of Limitations on a medical malpractice case is 2.5 years from the date of the malpractice or 2.5 years from the ending of continuous care by the doctor who committed the malpractice. So, you have plenty of time.

You obviously have a very complicated case. Here's the deal: no lawyer can know if malpractice occurred until it is learned from other surgeons what the problem has been. Was it NEGLIGENT SURGERY, that is, malpractice? Only another knee surgeon could legally answer that. Since all this loosening happened so soon after surgery I would say there is a likelihood that the surgeon did something wrong,used the wrong sized prosthetic components, whatever. Again, only another surgeon can answer the question. So you need to find out why you have had such problems. Forget about all of the bad BEDSIDE MANNERS you have suffered through. That was painful as well I am sure but you can't make a malpractice case out of that unless you have suffered great physical harm due to MEDICAL NEGLECT. But that can't be the basis for the case but it can certainly add to a case, if you have one.

You will probably have a tough time finding a lawyer to take the case at this point. First thing an interested law firm must do is hire an outside expert to review your entire medical course/history, maybe examine your knee, and come to some conclusion whether the surgery was botched or if there is some other reason for the failure. The lawfirm would probably have to put out $3-5,000 right off the bat for that. They may not be interested unless you come to them and can say that you have seen other surgeons who do think the surgery was done negligently. Then, the lawfirm might be willing to make the initial investment to confirm the negligence.

Also understand, if you do sue the surgeon, his medical group, the hospital etc. they will all have the best lawyers and very deep pockets to defend the case to the hilt. They will defend by saying everything was done WITHIN THE STANDARD OF CARE, there is never any guarantee of a good result, you have a difficult case anatomically, blah blah blah. In the meantime, your lawyers have to look at spending maybe $50,000 or quite possible much more just to get your case to a point where it might get settled so unless your damages are in the mid to high 6 figures, it isn't worth the risk. That is why lots of cases like yours fall through the cracks and never get anywhere. Probably 80% of med mal cases that do get to trial end up with a defense verdict. The jury concludes that "yes, the patient did have a very bad result, suffered greatly, but the surgeon did not make any mistakes, everything was done with REASONABLE MEDICAL JUDGMENT, and the Standard of Care. Defense verdict and your lawyers lose a big chunk of money. They would have taken this big risk in order to make 33.3-40% of what your are awarded so you can see, unless you get a big verdict or settlement it isn't worth pursuing. Thats not fair or justice I know but those are the facts.

So, I would concentrate on getting a definitive explanation from an experienced knee replacement surgeon why your surgery failed so badly and then, get it fixed. If it can be repaired and you do eventually get the result you were hoping for, then notwithstanding all of your pain and suffering, the damages won't be high enough to proceed as explained above. If however you are left with some kind of permanent impairment that cannot be repaired and is a result of negligent surgery, then you might have a case but I don't wish that for you. If you think after considering all of this, contact some large lawfirms in your area. You need one that would be willing to make the investment in time and money. Finally, I suggest you order all of the records of the surgery that failed and follow-up records. If you have them in hand it is more likely that you will get your foot in the door with some lawfirm. Good luck.